| Admiralty jurisdiction gives the High Court power to determine specified maritime claims and, in suitable cases, proceed directly against a ship. In Malaysia, the jurisdiction is principally linked through section 24(b) of the Courts of Judicature Act 1964 to the categories and jurisdictional rules in sections 20 to 24 of the United Kingdom Senior Courts Act 1981. Other Malaysian maritime legislation defines territorial and maritime zones, while Order 70 of the Rules of Court 2012 and applicable practice directions regulate admiralty procedure. Current rule numbering and directions should always be confirmed before filing. What claims fall within admiralty jurisdiction? The statutory categories cover a broad range of shipping disputes, including: - possession or ownership of a ship or a share in it; - disputes between co-owners concerning possession, employment or earnings; - mortgages or charges over a ship or share; - damage received by or caused by a ship, including collision claims; - loss of life or personal injury connected with a ship; - loss of or damage to goods carried aboard; - agreements for carriage of goods, chartering, use or hire of a ship; - salvage services; - towage and pilotage; - goods or materials supplied for a ship’s operation or maintenance; - construction, repair or equipment of a ship, and dock charges or dues; - wages of the master or crew; - disbursements made by a master, shipper, charterer or agent on account of the ship; and - forfeiture, condemnation, restoration after seizure and droits of admiralty. A maritime connection alone does not guarantee an admiralty action. The claim must fit a recognised category and satisfy the conditions governing the particular form of proceeding. Action in rem An action in rem is brought against the ship or other maritime property. It can allow a claimant to arrest a vessel and obtain security for the claim. Maritime liens, ownership disputes, mortgages and certain statutory rights in rem are common examples, but the requirements differ. For some claims, the person who would be liable in personam must have owned or chartered the ship when the cause of action arose and must remain the beneficial owner of the relevant ship, or satisfy the statutory sister-ship conditions, when proceedings are commenced. An in rem claim should not be understood as a universal right to arrest any vessel connected with a debtor. Ownership, charter status, timing and the nature of the claim require careful investigation through registries, ship data and documentary evidence. Action in personam An action in personam proceeds against the individual or legal entity personally liable, such as a shipowner, charterer or contractual counterparty. Ordinary rules of jurisdiction and service apply, together with statutory restrictions relevant to collision and other maritime claims. A claimant may pursue personal liability without arrest where the defendant is within jurisdiction, submits to it or can validly be served. Why is ship arrest important? A vessel is mobile and may leave the jurisdiction quickly. Arrest can establish security and prevent departure until the owner provides acceptable bail, a bank guarantee, protection-and-indemnity club letter or other security. The claim then usually continues without requiring the ship to remain detained. Arrest is a procedural remedy, not a final determination that the claim is valid. How is an arrest obtained? The claimant files the required admiralty process, affidavit and supporting documents and seeks a warrant. Once issued, the warrant is executed by the Sheriff or authorised admiralty officer. The vessel remains under arrest until release is ordered, security is provided or the court directs sale. In many cases the owner arranges security promptly to avoid operational loss. Wrongful or unjustified arrest can expose the claimant to costs and, in an appropriate case, damages. Limitation conventions, contractual time bars, arbitration clauses and jurisdiction agreements may also affect strategy. Because factual and procedural mistakes can be costly, a party contemplating arrest should obtain urgent specialist advice before the vessel sails. |
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Posted by David Chau & Artika on 25 Jul 26
Malaysia